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U.S. Government Prosecutes First Wind Project under the Migratory Bird Treaty Act

Beveridge & Diamond, P.C., January 29, 2014

The U.S. Department of Justice (“DOJ”) recently announced the settlement of its first-ever criminal enforcement action brought against a wind farm operator under Migratory Bird Treaty Act (“MBTA”).  The DOJ and U.S. Fish and Wildlife Service (“FWS”) charged the operator with misdemeanor violations of the MBTA by taking over 160 migratory birds without a permit.  This action signals new potential exposure for operators of wind facilities that, until now, have been spared prosecution under this strict-liability criminal statute and implementing regulations.

Originally enacted in 1918 to prevent the overhunting and poaching of migratory birds, the MBTA makes it a crime to “take” any migratory bird “by any means and in any manner,” regardless of whether the take is intentional or incidental to an otherwise innocent activity.  The Act authorizes regulations governing the issuance of permits for the take of migratory birds in certain circumstances.  Generally, the FWS has not made permits available for otherwise lawful activities that incidentally take migratory birds.  Specifically, no regulation expressly allows for permits for the unintentional, incidental take of migratory birds associated with the operation of projects such as a wind energy facilities.  Consequently, whether a business is prosecuted for the unintentional or incidental take of a migratory bird has depended solely on the prosecutorial discretion exercised by the FWS in conjunction with the DOJ.   

The U.S. historically has brought criminal actions under the MBTA against otherwise lawful commercial activities for the sole reason of migratory bird impacts.  These cases have arisen in connection with power plants, transmission lines, oil and gas facilities, chemical plants, and timber harvesting, despite the fact that the associated bird deaths were incidental to operations.  This practice has led to disparate judicial standards regarding whether an activity creates exposure to criminal liability under the MBTA, and tended to soften the strict liability standard suggested by the language of the Act. 

Until now, the government has refrained from prosecuting wind energy operators for similar take of migratory birds.  Rather, it has been the policy of the FWS to work cooperatively with wind developers to minimize the impacts of these projects on migratory birds.  In March 2012 the FWS finalized comprehensive “Land-Based Wind Energy Guidelines” for this purpose.  While these guidelines are not legally binding and do not create a permit shield from potential liability, as a practical matter it has generally been thought that compliance with these guidelines and with FWS recommendations for a particular project would insulate a developer from prosecution.  

This first criminal prosecution of a wind developer under the MBTA demonstrates that wind developers are not “safe” from MBTA prosecution.  It also highlights the need to understand and adhere to the FWS’ expectations for such projects.  The issue of avian mortality at wind facilities is one of growing concern in the environmental community and for developers.  A statutory or regulatory fix is unlikely.  But criminal enforcement is more likely where the FWS is dissatisfied with a wind project’s impacts on migratory birds and an operator’s efforts to minimize or mitigate them.

For more information on this development or its implications for a specific project, please contact James Auslander at (202) 789-6009, jauslander@bdlaw.com; Parker Moore at (202) 789-6028, pmoore@bdlaw.com; or John Cossa, (202) 789-6093, jcossa@bdlaw.com.  For questions regarding criminal enforcement, please contact Nadira Clarke, (202) 789-6069, nclarke@bdlaw.comSee also John Cossa, Wind Energy Development and the Protection of Migratory Birds, 15 A.B.A. Int’l Envtl. and Resources L. Comm. Newsl 1, 24-30 (March 2013).   

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